MUHAMMAD YOUSAF vs Mst. WALAYAT BIBI and 2 others
This petition for leave to appeal challenged a Lahore High Court judgment that partially modified a maintenance order granted to a divorced wife. The core legal question concerned the appropriate period and quantum of maintenance payable to the respondent following the petitioner's second marriage and subsequent divorce. The petitioner argued that the maintenance amount was excessive and that the period of liability was incorrectly determined. The Supreme Court upheld the High Court's decision, noting that the petitioner had previously consented to the modified maintenance amount and payment schedule before the High Court. The Court held that a party cannot challenge a quantum of maintenance or an installment plan on appeal after having explicitly agreed to those terms in the proceedings below. Furthermore, the Court affirmed that the High Court's determination of the maintenance period—commencing from the date of the petitioner's second marriage—was just and reasonable. Consequently, the petition was dismissed, and leave to appeal was refused, as the petitioner failed to demonstrate any legal error in the High Court's findings.
- Can a petitioner challenge the quantum of maintenance on appeal after having consented to that amount in the High Court?
- From what date is a divorced wife entitled to maintenance when the husband has contracted a second marriage?
- Is a maintenance order based on a party's consent subject to interference by the Supreme Court?
' MIAN MUHAMMAD AJMAL, J.---This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore, dated 13-6-2001, whereby Writ Petition No,14437 of 2000 of the petitioner, was partly allowed.
2. Brief facts of the case are that on 29-2-1988 marriage between the petitioner and respondent No,1 was solemnized, however, no issue was born of the said wedlock. The petitioner contracted second marriage in the month of December, 1996 and divorced respondent No,1 on 15-11-1997.
Respondent No, 1 filed an application for the grant of maintenance on 10-12-1997 before the Chairman, Arbitration Council, respondent No,2 who vide his order, dated 28-3-1997 granted maintenance allowance against the petitioner at the rate of Rs,6000 per month from 1-6-1996 to 15-5-1998 amounting to Rs,1,35,000. The petitioner filed a revision petition before the Deputy Commissioner/ Collector, Lahore, against the said order, dated 28-3-1997 who vide his order, dated 6-7-2000 modified the order reducing the amount of maintenance from Rs,6,000 per month to Rs,3,000 for the period determined by the respondent No,2.
3. The petitioner then filed Writ Petition No,14437 of 2000 before the Lahore High Court, Lahore. A learned Single Judge of the High Court vide her order, dated 13-6-2001 partly accepted the writ petition observing as under:- ' "After hearing the learned counsel and examining record, I find that the maintenance has been awarded from 1-6-1996 although the petitioner entered into second marriage in December, 1996.
Therefore, presumption is that he was maintaining respondent No,1 for the period 1-6-1996 to December, 1996. However, respondent No,1 is entitled to maintenance from the date the petitioner has entered into second marriage. Therefore, maintenance is payable to respondent No,1 for 18 months i.e, December, 1996 to 15-5-1998 at the rate of Rs,3,000 per month which is less than 40% of petitioner's income. The total amount comes to Rs,54.000. The learned counsel for respondent No,1 has agreed that if the petitioner is allowed to pay the said amount in two instalment i.e, 27,000 each he has no objection to it. Be that as it may, this petition has been partially accepted to the extent of this modification of period of time of manitenance which is now 18 months. If the petitioner does not accept these instalments respondent No,1 is entitled to recover the amount in accordance with law."
4. We have heard the learned counsel for the petitioner and have perused the record. Learned counsel reiterated the same arguments which were raised before the High Court and submitted that the maintenance of Rs,3,000 per month is excessive and that it was due from June, 1997 onwards as the respondent was maintained by the petitioner till that time. We do not find any substance in the arguments of the learned counsel as the petitioner agreed before the High Court to pay the total amount of Rs,54,000 at the rate of Rs,3,000 per month in two instalments, therefore, he cannot turn around to say that rate of maintenance was excessive. The learned High Court has correctly fixed the period for maintenance and the maintenance granted to the respondent seems to be just and reasonable. Finding no merit in this petition it is dismissed and leave refused.